278 Mo. 610 | Mo. | 1919
Lead Opinion
Relator seeks to prohibit the Circuit Court of Jackson County from proceeding further in an election contest. November 5, 1918,. relator and respondent Welch were opposing candidates for Presiding Judge of the County Court of Jackson County. The official count was completed and, as announced on November 11th, showed the election of relator by several thousand votes. November 27th Welch filed in the circuit clerk’s office at Kansas. City a notice of contest, which was delivered to the sheriff for service on the same day. 'The sheriff made return that he had “made diligent search for and failed to find the said Miles Bulger in Jackson County, Missouri, up to and including two o’clock p. m. of November 30, 1918, and made diligent- search for and failed to find any member of the family of said Miles Bulger, over the age of fifteen years, at his usual place of abode in Jackson County, Missouri, up to and including two o’clock p. m. of
the ballots shall not be destroyed until such contest . . . be finally determined. In all cases of contested elections, the parties contesting the same shall have the right to have said ballots opened and counted, and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest.” This section applies to Kansas City. Section 5922, Revised Statutes 1909, provides that “the powers and duties herein given to and imposed upon the clerks of the several counties shall be éxercised in reference to St. Louis and Kansas City, and to any other city hereafter having registration of voters, by the board of election commissioners of such city.” This section includes all cities within the class at the time and all which might thereafter come into that class. It is applicable to contested elections. [State ex rel. v. Klein, 116 Mo. l. c. 265, et seq.] It is true the article relating to contests has been said to be a code unto itself so far as concerns procedure in an election contest, but this does not argue that the usual rules of construction do not apply in determining whether particular provisions of other articles of the same chapter are, in effect, parts
of the article relating to contests.
Prior to 1879 (Sec. 57, p. 67, G-. S. 1865) the clause “and service of notice of contest” did not appear in the statute. The cases of Castello v. Court, 28 Mo. 259, and Adcock v. Lecompt, 66 Mo. l. c. 42, 43, upon which relator relies, were decided under the old statute. Under that statute the contest was triable at the first term held “fifteen days after the official counting of the votes.” ' It seems to have been held that this provision applied whether or not there would be left twenty days for. service. Then came the amendment inserting the clause quoted. Than those of the amendment, words could not well be more apt to change the former rule. The triability of the contest at a particular term of court was made to depend upon two things, i. e. that the term began fifteen days (1) after the official count, and (2) after the service of notice pf contest. The question in Montgomery v. Dormer, 181 Mo. l. c. 14, and State ex rel. v. Evans, 184 Mo. l. c. 640, 641, was whether an adjourned term filled the statutory description of a “term” of court. Those decisions are not applicable to this case.
Applying the settled rule, the last day for personal service in the contest proceeding- was Monday, December 2, 1918. It is admitted the notice was posted at 2 p. m. Saturday, November 30th. No effort to secure personal service was made after that time. If thé officer could, two and a half days before the expiration of the time therefor, abandon all effort to secure personal service, the requirement therefor would tend to become merely perfunctory. The service of notice of contest is like the service of petition and summons. The return was premature and illegal (Lumber Co. v. McCabe, 220 Mo. l. c. 167,. et seq., and cases cited) and constituted no basis for constructive service. There was no service, -personal or constructive.
Waiver IV. It is urged relator appeared in the contest proceeding and thereby waived the lack of service. It is Uled that an election contest is a special and statutory proceeding, not according to the course of the common law. From an early date it was held in such cases that notice in accordance with the statute was essential to jurisdiction. [Castello v. Court, 28 Mo. l. c. 275, 276; In re Wilson v. Lucas, 43 Mo. l. c. 293, 294; Bowen v. Hixon, 45 Mo. l. c. 344, 345; Ramsey v. Huck, 267 Mo. l. c. 338, 339, and cases cited; State ex rel. v. Robinson, 270 Mo. l. c. 222, 223, and authorities cited.] The statute (Section 5924, R. S. 1909) specifically provides that “no election of . . . any county officer shall he contested unless notice of such contest shall he given the opposite party within twenty days after the votes shall have been officially counted-.” This court has repeatedly held this provision is peremptory, as shown by the eases cited above. In State ex rel. Newell v. Cave,
The first motion filed by the contestee (relator here) was not based solely upon the ground that a copy of the notice of contest had not been delivered or posted in proper time. The fifth and seventh grounds challenged the legal sufficiency of the notice. The sixth ground charged, in effect, that the term of court at Kansas City .was one into which no notice could bring the contestee, and the eight ground was that no notice had been so filed that any contest was pending. The amended motion' contained a ground to the effect that the court had no jurisdiction under the article on contested elections.
In an ordinary action combining other grounds, in the first instance, with an attack on the jurisdiction of the person, ordinarily constitutes a waiver of objections to service. [State ex rel. v. Grimm, 239 Mo. l. c. 171, et seq., and cases cited; Iddle v. Hamler Co., 132 La. l. c. 478; City Natl. Bank v. Walker, 130 La. l. c. 811; Crowell v. Galloway, 3 Neb. 215; Fitzgerald v. Fitzgerald, 137 U. S. 98; Crawford v. Foster, 84 Fed. l. c. 941; Kaw Life Assn. v. Lemke, 40 Kan. l. c. 145, and cases cited; Elliott’s Appellate Procedure, par. 678.]
In this case the statute provides for a summary disposition of the proceeding and explicitly excludes formal pleadings.
(a) The first four grounds clearly constituted no waiver, (b) The attack upon the legal sufficiency of the notice waived nothing unless we are to overrule a contrary holding acquiesced in by the Legislature for sixty years. Judge Lackland discussed the meaning of the statute in an identical case-, on the same' question of waiver, in his return in Gastello v. dou,rt, 28 Mo. 1. c. 265. That construction of the statute was approved in the opinion. The comment he made on the effect of counter notice need not be considered since Section 5921 is not, in that respect, like the section then under consideration. With respect to the effect of the motion in that case, Judge Lackland said it was “the object of the statute to give the notice a double operation, that , is, to bring the party into court and to set forth and advise the court of the grounds of contest; that the notice required by the statute seemed designed to stand in lieu of and perform the functions of a writ and petition in an ordinary suit; and it would seem to be just as unreasonable to say that the contestee could not appear in court and object to the notice upon the ground that it is insufficient in law as to say that a defendant could not appear in court and demur to a petition in an ordinary suit.” By this the learned judge, and, by adopting it, this "court, evidently meant (as the
VI. The preliminary rule is made absolute.
Concurrence Opinion
(concurring.) — I concur fully in paragraphs one, two and three of the opinion, and in tire
We have contested election proceedings wherein the circuit courts are given jurisdiction, which have not this prerequisite of jurisdiction required by Section 5924, supra. The contests involved under Section 5957 and 5965, Revised Statutes 1909, are examples. In these cases the contestant files his petition in court as in an ordinary action, and this act invokes the jurisdiction of the court over the subject-matter. These statutes provide for bringing in the contestee by summons, as in ordinary actions. So that in these cases the court acquires the jurisdiction of the subject-matter (the contest) by the filing of the petition. In such case the usual rule of waiver as to jurisdiction over the person applies.
This, however, has no application to these summary proceedings under Section 5924, supra, where as a prerequisite of any kind of jurisdiction there must be a properly served notice. Such has been the universal ruling of this court from Castello v. St. Louis Circuit Court, 28 Mo. 259, up to and including State ex rel. v. Robinson, 270 Mo. 212. The case of State ex rel. v. Cave, 272 Mo. 653, is an innovation. However, our individual views are fully expressed in.State ex rel. v. Cave, 272 Mo. l. c. 663 et seq., and in State ex rel. v.
So, whilst I think my learned brother has written well on the question of waiver, I do not think it is in this ease at all. For these reasons, I concur as above stated.
Dissenting Opinion
(dissenting.) — This is an original proceeding instituted in this courP against the respondent, seeking to prohibit him from proceeding with the trial of the case of Bert W. Welch v. Miles Bulger, wherein the former is contesting the latter’s election as-Presiding Judge of the County Court of Jackson County. A temporary writ was issued by this court, and in due time the respondent made return thereto.
The facts of the- case are undisputed, and are stated by counsel for respondent in substantially the following language:
Miles Bulger, and Bert W. Welch, respondent, were opposing candidates at the November (1918) election for the office of Presiding Judge of the County Court of Jackson County, Missouri. Said election was held on the fifth day of November, 1918, and on the 11th day of that month the Board of Election Commissioners of Kansas City, Missouri, completed the official count and made the announcement, of the votes cast at the election, and upon the face of the returns said Miles Bulger ■ was elected and a certificate of election was duly issued to him. On November 27th, the respondent, Bert W. Welch, filed in the office of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City, a notice of election contest and two copies thereof, as required by the rules of the court, and caused the same to be delivered on November 27th, to O. H. Gentry, Jr., Sheriff of Jackson County, Missouri, for service upon the said Miles Bulger. Thereafter, the said sheriff retained said papers until the 30th day of November, 1918, at the hour of two o’clock p. m., when he posted the same in the office of the Clerk of the
The return shows that the sheriff made diligent search for and failed to find the said Miles Bulger in Jackson County, Missouri, and he made diligent search for and failed to find any member of his family over the age of fifteen years at his usual place of abode in said county, or in said county; and thereupon served the within notice on November 30, 1918, at two o’clock p. m. by posting up a copy thereof in the office of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City.
On or about December 20, 1918, contestant filed an application in said circuit court held at Kansas City, asking for an order opening the ballot boxes as provided by statute. On or about January 3, 1913, contestee appeared in said court and filed his motion to quash this application. Thereafter said Bulger filed an amended motion to quash contestant’s application to open the ballot boxes.
The grounds upon which the motion to quash was , based were: First, that the said court was without jurisdiction to hear and determine said contest, for the reason that Welch did not give Bulger notice of the alleged contest within twenty days after the official count of the votes cast at said election; second, that said notice of contest was not served fifteen days before the first term of the circuit court held fifteen days after the official count of said votes; third,'that said contest was not instituted at Independence, where the term of court.began December 2,1918; fourth, that posting notice in the office of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City, at two o ’clock p. m. November 30, 1918, was constructive service, and that the writ was prematurely returned; that the sheriff should have held it for the full time directed by law — that is to say, twenty days.
On December 30, 1918, the petitioner appeared' specially and filed a motion to quash said order, which motion was, by leave of the.court, on January 6, 1912, withdrawn and another motion filed, setting up that said court was without jurisdiction to hear and determine said contest, because the contestant did not give the contestee twenty days’ notice, as required by law.
Second. That said court was without jurisdiction to hear and determine said contest for the reason that no notice of said contest was legally served upon contestee by said contestant or upon any member of his family, at his usual place of abode, over the age of fifteen years, or with anyone else.
Third. That the pretended constructive service by posting up a copy of the notice in the clerk’s office at two o’clock p. m., November 30, 1918, was-prematurely done by the sheriff, and that he was without authority to post said notice, and that said pretended constructive service was null and void and did not bring the contestee into court.
Fourth. That said court was without jurisdiction to make the order requested by contestant upon the Board of Election Commissioners, because no power was given under Article 6 of Chapter 43 of the Revised Statutes of Missouri of 1909, to make such an order.
Fifth. That the said court was without jurisdiction to hear and determine said contest because the first term of the Jackson County Circuit Court held after said'election, was begun at Independence, Missouri, on December 2, 1918; and that if contestant desired to institute a contest, he should have filed it at Independence, Missouri, instead of at Kansas City.
On the 8th day of January, 1919, the court overruled contestee’s motion to quash the order to open the ballot boxes, and on January 10th he overruled contestee’s motion to quash the notice to take depositions; and on January 10th,, respondent issued his order to the Board of Election Commissioners to open the ballot boxes, which the petitioner challenges on the ground that there is no authority given by the statutes of Missouri to issue- such order to said board.
The record shows that the official count of the votes cast was completed and announced on November 11, 1918, and that on the 27th day of that month the notice was placed in the hands of the sheriff for service, which he held until two o’clock p. m., Saturday, November 30, 1918, when he posted up a copy of the same in the office of the Clerk of the,Circuit Court of Jackson County, as provided for by statute.
The statute under which this contest was instituted is Section 5924, Revised Statutes 1909, and insofar as is here material, reads as i follows:
“The several circuit courts shall have jurisdiction in cases of contested elections for county and municipal offices, . . . but no election of any . . . county, municipal or township officers shall be contested • unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted. . . . The notice shall specify the*629 grounds upon which the contestant intends.to rely, .and if objection be made to the qualifications of any voters, the names of such voters and the objections shall be stated therein, and the notice shall be served fifteen days before the term of court at which the election shall be contested, by delivering a copy thereof to the contestee, . . . or if neither such contestee nor his family can be found in the county, and service cannot therefore be had as aforesaid, it shall be a sufficient service of such notice for the contestant to post up a copy thereof in the office of the clerk of the court where the contest is to be heard.”
The official count of the votes cast was completed November 11, 1918, and, therefore, under the provisions of the statute just quoted, the notice of contest ordinarily could have been served personally upon the contestee on or before December 1, 1918, for the reason the twenty days mentioned in the statute would have expired on that day; but under the facts of this case, December 1st, 1918, fell upon Sunday, and under Section 8057, Revised Statutes 1909, that day must he excluded, for the reason that it provides: “Fourth, the time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded.” So according to this statute, had the contestee been personally served on Saturday, November 30, 1918, it would have been in due time; but the return of the plaintiff shows that he was not personally served upon that May, or upon any other, but was constructively served on Saturday, November 30,1918, at two o’clock p. m. by posting a copy of the notice in the office of the Clerk of the ' Circuit Court of Jackson County. The sufficiency of this service is challenged by the relator for the reason that the sheriff made his return prematurely, that is, at two o’clock, p. m., November 30, 1918, when he should have held it until the last minute of the last hour of that day, and should have exhausted all of that time in search for the contestee. We are cited to the fol
These authorities do not support the proposition contended for by counsel for relator; nor is their challenge of the sufficiency of the service well grounded, for the reason that the law does not recognize fractions of a day in the service of process. [Kimm v. Osgood, 19 Mo. l. c. 60; Shaffer v. Detie, 191 Mo. l. c. 287; Columbia Turnpike Road v. Haywood, 10 Wend. 422; In re Puglisi, 230 Fed. 189; Cosgriff v. Board of Election Commissioners, 91 Pac. 99; Portland Bank v. Maine Bank, 11 Mass. l. c. 205; 2 Freeman on Judgments, Section 370; Bruce v. Vogel, 38 Mo. l. c. 104; United States v. Lumber Co., 142 Fed. 432; National Bank v. Burkhardt, 100 U. S. 689; Follet v. Hall, 16 Ohio, 111; Tilton v. Sterling Coal & Coke Co., 28 Utah, 173; Smith v. Commissioners, 10 Colo. 28; Long’s Appeal, 23 Pa. 297; Linhart v. State, 33 Tex. Cr. R. 507; Fhbien v. Grabow, 134 Mo. App. l. c. 196; Central Coal & Coke Co. v. Graham, 196 S. W. l. c. 943; Ladany v. Assad, 91 Conn. 316; Rice v. Beavers & Co., 71 Mo. 659; Hamilton v. State, 101 Tenn. 417; Hattiesburg Grocery Co. v. Tompkins, 71 So. 866; Lang v. Phillips, 27 Ala. l. c. 314; Dierssen v. Ins. Co., 204 Ill. App. 240; Warren v. Slade, 23 Mich. 1; Wood on Limitations (2 Ed.), p. 119; Wiggin v. Peters, 1 Metc. 129.]
According to the law as announced in the foregoing authorities, the posting up of the notice of contest in the clerk’s office at two o’clock p. m., November 30, 1918, which was also within the twenty days, was sufficient service of the notice; and this point should therefore be decided against the relator.
“Every court authorized to determine contested elections, shall hear , and determine the same in a summary manner, without any formal pleading, and the contest shall be determined at the. first term of such court that shall be held fifteen days after the official counting of the votes, and service of notice or contest, unless the same shall be continued by consent or for good cause shown. ’ ’
This court will take judicial notice of the fact, that the first term of the Circuit Court of Jackson County, which, under the law, could have been held after the official count of the votes cast at the November election of 1918, which was November the 5th of that year, would be at Independence on December 2, 1918. Upon these facts, it is contended by counsel that since the official count was completed and announced on November the 11th, 1918, and the first term of the Circuit Court of Jackson County thereafter began on December 2nd, following, the contest proceedings should have been brought in that court, and to that term thereof, for the reason that said term began fifteen days after November 11th, the day the official count of the votes cast was completed. In other words, their position is that the proceedings should have been brought to the December term, 1918, of the Circuit Court of Jackson County at Independence, notwithstanding the fact that at that time the twenty days within which the notice of contest was, by Section 5924, Revised Statutes 1909, required to be served upon the contestee would not then have expired; but in order to obviate this conflict between the two statutes, it is insisted that they should be so construed as to require the twenty days mentioned in Section 5924 and the fifteen days mentioned in Section 5928 to run concurrently, or that the fifteen days should curtail the twenty days to such a number as to leave only fifteen days time after the count of the votes in which to institute the contest proceedings at the first
In passing, according to this construction, I desire to ask what disposition is made of December 1, 1918? I am unable to see where it has been counted under either theory of counsel for relator, but, fearing I have not correctly stated counsel’s position regarding the proposition just mentioned, I will state it in their own language; it is as follows:
‘ ‘ So that the rule is iron-clad, that the contest must be brought at the first term of the circuit court held in the county, and the notice must be served fifteen days before that term begins; and if that cuts in on the twenty days’ notice, the contestant has got to act accordingly and shorten his time. In this case he had only from November 11th to November 17th in which to give the notice.”
This construction placed upon Section 5928 not only conflicts with Section 5924 as to giving the twenty days notice of the contest, but violates the letter and spirit Of Section 5928 itself, the very statute they are construing.
That section provides that the court shall hear and determine the .proceeding in a summary manner and to determine the same at the first term of such court that shall, be held fifteen days after the official counting of the votes, and service of the notice of 'the contest. (Italics ours).
By thus reading and construing the two statutes together, it seems clear that what the Legislature meant was, that the 'court in trying the cause shall determine the same at the first term of the court which should be held fifteen days after the expiration of the twenty days allowed for serving the notice of contest, which, of course, under the provisions of Section 5924, would have to begin the next day after the official count had been completed, which in the instant case was November 11th, as before stated. So if this is what the Legislature meant, the proceedings could only have been instituted at a term of the circuit court which had begun not earlier than fifteen days after November 30th, which was the date upon which the twenty days’ notice expired, as held in paragraph one of this opinion. This construction is also in keeping with the language of said Section 5928, for the reason that it provides tha’t the contest shallbe determined at the first term of the ‘‘ court that shall be held fifteen days after the official counting of the votes, and service of notice of contest.” Not simply after the expiration of fifteen days after the official count is completed, but at the first term after the expiration of both the fifteen and twenty days have elapsed. Had the Legislature’used the words “and after the expiration of the twenty days notice required to be given of the contest” instead of those previously italicized, there could have been no shadow of doubt as
This construction of those statutes also utilizes the 1st day of December, 1918, beforementioned, as one of the days in computing the time in which the suit shall have been instituted, while under the construction given to them by counsel for relator that day is entirely ignored.
If I am correct, and this is the meaning of the statutes, then the proceedings could not have been instituted and determined at the December term, 1918, of the circuit court, sitting at Independence, but should have been brought to the first term of the Circuit Court of Jackson County, which was held, after the expiration of said fifteen and twenty days, the one attached to the other, or in other words, brought to the first term of that court which should have been held not earlier than thirty-five days after the completion of the official count of the votes cast, which was, as previously stated, on November 11, 1918; and since the record shows that the proceedings were brought to the January term, 1919, of the Circuit Court of Jackson County, sitting at Kansas City, and that it was the first term after the expiration of said thirty-five days, we hold that the proceedings were, properly brought at that time and in that court.
Before passing to the next proposition presented for determination, it may not be amiss to notice f»he contrast between the strictness with which counsel for respondent deal with the twenty days’ notice of the contest required to be given by Section 5924, Revised' Statutes
We confess that the language of this statute does not clearly designate to what particular term of court the contest proceedings shall be brought, or the exact time when they shall be instituted, but when we consider the fact that the statutes are dealing with county, municipal, school and township elections, and that they are held at different times of the year, and the further fact that no one can tell the exact date when the official count of the votes cast will be completed or announced, it readily occurs to me why the Legislature could not definitely designate the court or the term thereof when the proceedings should be instituted, especially when the various terms of the various circuit courts of the various counties are two or three times more numerous than are counties in the State.
The further fact that the Legislature was evidently trying to fix a reasonable time in which the parties might prepare their notices of contests, which also serve as the pleadings in the case, prepare their cases for trial, and compel a speedy trial thereof on account of the public interest being involved, also caused the Legislature to use rather flexible language in trying to cover all such cases, instead of fixed terms which might not be held for months after the vote had been cast, and counted.
In the light of all the facts the Legislature was dealing with, if we carefully read the language of these, statutes, there will be but little diffculty encountered, in ascertaining when and where all such contests should be brought, as previously shown.
Section 3 of Article- 8 of the Constitution provides that: “In all cases of contested elections, the ballots cast may be counted, compared with the list of voters and examined under such safeguard and regulation as may be prescribed by law.”
Counsel for the relator contend that the Legislature has complied with this mandate of the Constitution by enacting Sections 5939, 5940,. 5941, 5942 and 5943, Revised Statutes 1909, and thereby authorizing the Clerk of the County Court, under the order of the circuit court, to examine, -count and compare the ballots cast under the safeguards prescribed therein, but deny, that the Legislature has authorized the board of election commissioners to so act, under such an order of the circuit court. Counsel have overlooked certain statutes bearing up'on this question. Section 6091, Revised Statutes 1909, as amended by Section 1, page 244, Laws 1911, creates a board of election commissioners for cities of the State having one hundred thousand inhabitants or over, prescribes their qualifications and manner of their appointment, and provides for the registration of the votes and elections to be held in such cities. This section requires the commissioners to secure and open an office and preserve the property thereof; also upon the appointment of the commissioners the county clerk of the county in which any such city is situated, or other custodians of said property, shall, upon demand, turn over to the board of election commissioners all registry books, poll books, tally sheets and ballot boxes heretofore used and all other books, forms, blanks, stationery and property of every description in his hands- in any way relating to registration or elections, or the holding of elections, within said city.
Prior statutes had created similar boárds for such cities, and conferred the same powers and imposed the same duties upon them that the Act of 1911 has imposed upon the present board of election commissioners, and that is why the last clause of said Section 1 of the Act of 1911 provided that the powers conferred and duties imposed upon such boards should rest in and be required of the boards mentioned in the Act of 1911.
Section 5922, Revised Statutes 1909, found in Chapter 43, Article .5, headed “Ballots, Voting and Returns,” provides that the powers and duties given and imposed by that article upon the clerks of county courts of the several counties of the State shall be exercised in reference to the City of St. Louis and Kansas City, and to any other city hereafter having a registration of votes, by the board of election commissioners of such city.
Section 5939, Revised Statutes 1909, in express terms provides that the circuit court shall have power to order the Clerk of the County Court in which the contest is held, commanding him to open, count and compare the ballots with the list of voters, and examine the ballots in his office which were cast at the election in question, etc. .
And Section 6143, Revised Statutes 1909, provides that the board of election commissioners shall proclaim the results of election, and that they shall be the custodian of the ballot boxes, ballots, books, etc., and that they shall keep said boxes locked up -securely for a period of' twelve months, and at the end of said twelve months after said election, said ballots may be destroyed; provided, that if any election contest or prosecution of election officer shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest shall be finally determined,
Under the foregoing- statutory provisions there can be no question but that the Board of Election Commissioners of Kansas City possess the same power and have the same duties imposed upon them'regarding elections and election contests that the various clerks of the county courts throughout the State have; and when we read Section 5939, which imposes upon the clerks of the county courts the duty to open and compare the ballots, in connection with Section 5922, which imposes the same duty upon the Board of Election Commissioners of Kansas City, and with Section 6143, which expressly gives the contestant the right to have the ballot boxes opened and the ballots counted, compared, etc., there can be no reasonable doubt but that the Legislature intended that the Board of Election Commissioners of Kansas City should, in an election contest, open, count and compare the ballots under the order of the circuit court in the same manner and under safeguards that the Clerk of the County Court might do in any other county of the State, under like conditions.
Entertaining these views, we are of the opinion that our preliminary writ of prohibition was improvidently issued. I therefore dissent.